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AFFIDAVIT
May 17, 1999

Brigitte Picart being duly sworn deposes and says:
  1. I am the Respondent in this action and submit this affidavit in support of a motion

    A- To strike the action from the trial calendar pursuant to Section 208.17 c) of the Uniform Rules of Court and

    B- For the recusal of Judge Milin pursuant to Judiciary Law 14, the Canons of Judicial Conduct 2A, 3B2, 3B7, 3B8, 3E a) and c) and Section 100 et seq. of the Uniform Rules of Court.

    A-

  2. By notice of motion and affidavit dated May 3, 1999 I moved this court to strike this action from the trial calendar.
  3. The trial had been scheduled for May 5th and on May 5th, shortly before the courtroom opened a woman introduced herself to me as Mina MacFarlane, attorney at law, and stated that she had been appointed as my guardian ad litem by the court.
  4. When the case was called Judge Milin sated to me that she had called the Bar Association that very morning and was given the name and phone number of Ms MacFarlane as a "volunteer", which I understood to mean a lawyer willing to work pro bono.
  5. Ms MacFarlane stated to the court that she needed some time to study the case and the court proposed May 19th, to which Ms MacFarlane consented.
  6. By telephone on May 7th, Ms MacFarlane admitted to me that she had, by agreeing on the date of May 19th, agreed to the trial of the case on that date.
  7. At the time she thus declared that my side was ready for trial, Ms MacFarlane had not complied with the requirement of CPLR 1202 c) which states: "No order apppointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affid- avit stating facts showing his ability to answer for any damages sustained by his negligence or misconduct."
  8. By her failure to comply with this requirement, Ms MacFarlane has no standing in this action and her consent to trial is inval- id.

    B-

  9. On May 4, 1999 I filed a lawsuit in Federal Court against Judge Milin (Exhibit A). As a party to a lawsuit against me, Judge Milin stands to profit or gain by any decision rendered in the instant non-payment proceeding and should therefore disquali- fy herself, as she is "interested" in this action within the meaning of Judiciary Law 14 which states in relevant part: "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding [...] in which he is interested [...]"
  10. Moreover Canon 3E 1) requires that "a judge shall disqualify himself or herself in a proceeding in which the judge's impar- tiality might reasonably be questioned, including but not limited to instances where
    a) the judge has a personal bias or prejudice concerning a party...
    b) the judge knows that he or she [...] has any other more than de minimis interest that could be substantially affected by the proceeding.
  11. In fact this lack of impartiality has already been amply demonstrated by Judge Milin's repeated attempts to deprive me of a fair trial, in violation of my rights under the 14th Amendment to the Constitution:
  12. By failing to rule on my motion to amend my Answer and scheduling the case for trial TWICE nonetheless, Judge Milin has demonstrated bias in favor of the landlord.
  13. This failure to rule on my motion is a de-facto denial, which deprives me of an affirmative defense to the landlord's claim and exposes me to the loss of my household property and exposes me to homelessness.
  14. But what is worse is that not only am I deprived of my affirmative defense by this failure to rule on my motion, I am also deprived of the possibility to appeal the de-facto denial of it, which also demonstrates a strong bias in favor of the land- lord, since the failure to rule on a motion violates CPLR 2219 and the Canons of Judicial Conduct 2A and 3B8.
  15. Further bias in favor of the landlord is demonstrated by Judge Milin's acts and omissions regarding the appointment of a guardian ad litem to me:
  16. It was only after I had refused to settle the action out of court by insisting on a trial of the issues of fact raised in my affidavit, in support of my motion to amend my Answer, and actually only a few minutes after the end of the settlement conference, that Judge Milin decided to appoint a guardian to me. This occurred on December 8, 1998.
  17. That day I did not speak to Judge Milin so Judge Milin had no personal knowledge to assess whether or not I was capable of protecting my rights. A law clerk informed me of the appointment.
  18. Oral argument of my motion to amend my Answer was adjourned to December 16, 1998. On that day, BEFORE I had said anything but my name, Judge Milin informed me of her decision to appoint a guardian to me, on the grounds that she had concerns about my mental fitness to protect my rights.
  19. Then Judge Milin asked me when I had moved to my present address and when was the last time I had worked, and after I had answered these questions she stated that my answers confirmed her impression that I was not mentally fit to handle my case.
  20. Judge Milin stated that the man sitting to my left was from Protective Services for Adults and that she ordered me to undergo a mental evaluation by this agency, which would confirm or contradict her personal impression regarding my mental fitness.
  21. After these repeated expressions of doubt regarding my mental fitness, Judge Milin invited me to argue my motion. These state- ments by the judge could have resulted in undermining my self- confidence to argue my motion, or prompted me to withdraw my motion or both, to the advantage of the landlord.
  22. I underwent a mental examination at home by PSA on December 30, 1998. By a report entitled "Eligibility Determination" dated March 19, 1999 PSA determined that I was "ineligible" for their services based on the fact that "Your physical or mental dysfunc- tion does not render you unable to manage your resources, carry out the activities of daily living or protect yourself from neglect or hazardous situations without assistance from others." (Exhibit B herein).
  23. Nevertheless, by Order dated March 23, 1999 Judge Milin appointed me a guardian, "Henry Ludmer, Esq.", falsely stating that he was a lawyer, and falsely stating that he "is capable and has consented to serve as guardian ad litem [...] in that this individual was not a lawyer and had not satisfied the requirement of CPLR 1202 c) regarding the consent of a guardian, as stated at par. 7 above.
  24. By oral motion on April 5 I requested that this order be either vacated, or entered by the clerk so that I can appeal it. Judge Milin declined to do either, with the result that I cannot appeal this unlawful order and have to suffer the interference of unqualified individuals into this matter, with a potential for catastrophic consequences for me, all in violation of my rights under the Fourteenth and the First Amendments to the Constitution of the United States, and in violation of CPLR 2220 governing the Entry and Filing of Order, and the Canon of Judicial Conduct 2A.
  25. After Mr. Ludmer withdrew from the case on April 5, there took place three or four court dates which were adjourned, on the ground that Judge Milin had still not found a guardian to replace Mr. Ludmer, yet the judge allowed the case to proceed by asking the landlord's attorney to state his claim and me my defense right after Mr. Ludmer had left the courtroom on April 5.
  26. On April 13 Judge Milin stated that she was reasonably confident that she would have found another guardian for the trial and scheduled the trial for May 5. I asked again for a ruling on my motion ot amend my Answer, which the judge declined, stating that the trial judge would rule on it.
  27. In my affidavit dated May 3, 1999 in support of my motion to strike the case from the trial calendar, I stated that this case will not be ready for trial until the court has ruled on my motion to amend my Answer and until the court has either vacated its own order appointing me a guardian or duly entered the order.
  28. On May 5 I spoke to Ms MacFarlane about the outstanding motion and she told me exactly the same thing: that the trial judge would rule on my motion ot amend my Answer, as judge Milin told me on April 13.
  29. At my request, Ms MacFarlane also promised me not to make any decision without my consent, yet a few minutes later she declared my case ready for trial on May 19th.
  30. By stating that she had obtained Ms MacFarlane's name through the Bar Association, Judge Milin represented that Ms MacFarlane is a lawyer. In fact Ms MacFarlane is not a lawyer.
  31. When she scheduled a court date for May 19, Judge Milin did not explicitly state that this was a trial date, and did not address the outstanding motion.
  32. It is therefore apparent that Ms MacFarlane is protecting not my interests but the landlord's, as it is not in my interest to go to trial without a defense.
  33. Furthermore, during our telephone conversation of May 7 Ms MacFarlane has stated that, although she is a lawyer, and al- though she intends to "stand in my shoes" at trial, which means that she is going to prevent me from speaking, it is not as a lawyer that she wants to "help" me, which means that, whatever legal knowledge she has -which seems nil-, she will pretend not to know anything about the law and presumably not raise any objection at trial if my rights are violated, which is not compatible with the function of a guardian ad litem but a defi- nite advantage for the landlord.
  34. During the same conversation, Ms MacFarlane has categorically refused to address any of the legal issues of this case and has stated that the way she wants to "help" me is by facilitating my admission to a "crisis intervention center" at St Luke's hospi- tal, showing thereby her absolute confidence that she will lose at trial for me and that I might need some help in suicide prevention after becoming homeless and destitute.
  35. In all the proceedings before this court after I moved to amend my Answer the court has shown bad faith toward me:

    1)If the court had found that my motion lacked merit, the court could have denied my motion and I would have appealed, Instead the court attempted to circumvent its obligation to rule on that motion by declaring me mentally unfit and in need of a guardian.

    2)But the appointment of the two guardians is also flawed and unlawful, in that the order appointing a guardian was never entered by the clerk, thereby denying me once more the possibili- ty to appeal, and there is no evidence that I am mentally incom- petent.

    3)Neither Mr. Ludmer nor Ms MacFarlane is a lawyer, contrary to the court's statements, and when they appeared in court pro- ceedings neither had complied with the requirements of CPLR 1202 c).

  36. These egregious violations of the law (CPLR 2219, 2220, 1201 and 1202 c) give the landlord an unfair advantage and violate my rights of access to the court protected by the First Amendment and my right to substantive and procedural due process protected by the Fourteenth Amendment to the Constitution. They deny me my right to free speech and the opportunity to be heard by silencing me and letting an impostor with interests adverse to mine speak in my stead, and leave me no chance for a fair trial.
  37. By these violations of statutory and constitutional law, Judge Milin has demonstrated that she is willing to assist the landlord regardless of the law, even if as a result I become homeless, in violation of her judicial duties and the Canons of Judicial Conduct 2A, 3B2, 3B7, 3B8, and 3E a) and c), and Judi- ciary Law 14.

    WHEREFORE I request that this case be stricken from the trial calendar and that Judge Milin disqualify herself from this case.

    Respectfully submitted, Brigitte Picart

    Sworn to before me, May 17, 1999

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